Irwin v. Mascott, C 97-4737 JL.
| Decision Date | 31 August 2000 |
| Docket Number | No. C 97-4737 JL.,C 97-4737 JL. |
| Court | U.S. District Court — Northern District of California |
| Parties | Kathleen R. IRWIN, et al., Plaintiffs, v. Owen T. MASCOTT, et al., Defendants. |
Paul Arons, Law Office of Paul Arons, Redding, CA, O. Randolph Bragg, Horowitz Horowitz & Associates, Chicago, IL, Lorraine Ellen Baur, Ukiah, CA, for Plaintiffs.
Mark E. Ellis, June Coleman, Murphy Pearson Bradley & Feeney, Sacramento, CA, Jacob Koper, Concord, CA, for Defendants.
ORDER GRANTING PARTIAL SUMMARY JUDGMENT AS TO LIABILITY AND DAMAGES AND ORDERING PRELIMINARY INJUNCTION
Plaintiffs' Motion for Partial Summary Judgment and Preliminary Injunction came on for hearing on January 19, 2000. Appearing for Plaintiffs were Paul Arons and Lorraine Baur. Appearing for Defendants were Mark Ellis and June Coleman. The Court heard oral argument and took the matter under submission.
Plaintiffs Kathleen R. Irwin, Nancy Heth, and Lorraine L. Castaneda filed suit on December 31, 1997, for damages and injunctive relief in this action against defendants Owen T. Mascott, Commonwealth Equity Adjustments, Inc. ("CEA"), and Eric W. Browning, for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ["FDCPA"], and the California Unfair Business Practices Act, Cal. Business & Professions Code §§ 17200, et seq. ("CUBPA").
Plaintiffs allege that CEA and its executive director Browning through its then attorney Owen Mascott violated the FDCPA and CUBPA by means of written communications to debtors which:
1) contained impermissible threats of future litigation;
2) sought add-on charges and damages which CEA (and its attorneys) were not entitled to collect under California law; and
3) often contained draft lawsuits which Mascott had no intention of filing, to extort extra charges from debtors.
The class was certified on March 24, 1999. Irwin v. Mascott, 96 F.Supp.2d 968 (N.D.Cal.1999).1 The class is defined as follows:
Umbrella Class
1. (i) all persons with addresses in California; (ii) to whom any defendant has sent or will send or has caused or will cause to be sent a letter containing demands or representation which are identical or similar to the demands or representations contained in any of the letters attached as Exhibits 1-10 to the Complaint; (iii) in connection with attempts to collect debts arising from dishonored checks (iv) which checks were not returned as undeliverable by the Post Office.
B. Sub-Classes
Sub-class A: Those members of the umbrella class whose checks were written for personal, family or household purposes at any time on or after January 1, 1997 [the FDCPA class];
Sub-class B: Those members of the umbrella class whose checks were written for any purpose at any time on or after January 1, 1994 [the CUBPA class].
Defendants' Motion to Add Third-party Defendants was denied on February 11, 2000. Irwin v. Mascott, 94 F.Supp.2d 1052 (N.D.Cal.2000) Since the motion for summary judgment was submitted, the parties have filed approximately ten discovery motions.2
Plaintiffs move for summary judgment, including findings of fact and conclusions of law that Defendants' debt collection practices violate the FDCPA and the CUBPA, and that Defendants are liable to Plaintiffs for damages. Plaintiffs also move for entry of a preliminary injunction that Defendants cease all illegal debt collection practices.
Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). "The inquiry performed by the trial court is whether there exist `any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997) (citation omitted). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is "material" only if it could affect the outcome of the suit under governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202, (1986).
To withstand a motion for summary judgment, the opposing party must set forth specific facts showing that there is a genuine issue of material fact in dispute. See Fed.R.Civ.P. 56(e). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, "the moving party is entitled to a judgment as a matter of law." Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
The Court does not make credibility determinations with respect to evidence offered, and is required to draw all inferences in the light most favorable to the nonmoving party. See T.W. Elec. Serv., Inc., 809 F.2d at 630-31 (citing Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is therefore not appropriate "where contradictory inferences may reasonably be drawn from undisputed evidentiary facts ..." Hollingsworth Solderless Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir.1980).
A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Where the moving party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party.
If the moving party meets its initial burden, the opposing party must then "set forth specific facts showing that there is some genuine issue for trial" in order to defeat the motion. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511; Fed. R.Civ.P. 56(e). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. A grant of summary judgment is reviewed de novo by the appellate court; a denial of summary judgment is reviewed for an abuse of discretion. U.S. v. $5,644,540.00 in U.S. Currency, 799 F.2d 1357, 1361 (9th Cir.1986).
Plaintiffs ask this Court to issue an order granting summary judgment as to the liability of Defendant CEA for violations of the FDCPA, and the CUBPA, as well as plaintiffs' right to damages, restitution, and declaratory and injunctive relief. Plaintiffs do not request an award of a specific amount of either damages, restitution or interest by this motion. The FDCPA provides for both actual and statutory damages, up to the statutory ceiling, according to the sound discretion of the trial court. 15 U.S.C. § 1692k. See also 15 U.S.C. § 1692k(a)(2)(B) (). See also 15 U.S.C.A § 1692k(b)(1) ()
The CUBPA provides for both disgorgement of profits and injunctive relief as follows:
Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction. The court may make such orders or judgments, including the appointment of a receiver, as may be necessary to prevent the use or employment by any person of any practice which constitutes unfair competition, as defined in this chapter, or as may be necessary to restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition.
Plaintiffs ask this Court to make the following findings, as a matter of law:
Liability
1) CEA3 violates 15 U.S.C. § 1692 et seq., the Fair Debt Collection Practices Act ("FDCPA"), in particular §§ 1692e(2)(A), (10), and 1692(f), by seeking charges from check writers in excess of those expressly permitted by Cal. Civ. Code § 1719. (See Plaintiff's Memorandum of Points and Authorities at pages 19—23). § 1719 authorizes recovery of the face amount of the check, and treble damages at a minimum of $100, and a maximum of $1,500.00, provided the debt collector sends the check writer a certified letter informing him of the right to pay the check and a service charge within thirty days to avoid treble damages. § 1719 was amended January 1, 1997 to authorize an additional $25.00 service charge for uncleared checks. This amendment is not retroactive.
CEA routinely sends demand letters that do not conform to the provisions of § 1719, for example:
The "ADC Letter" (Plaintiffs' Appendix III in Support of Motion for Summary Judgment, Ex. 50) demands the face amount of the check, and $25.00 and interest. CEA is not entitled to interest.
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